Agrégateur de flux

Poursuivi devant la cour d’assises du Val-de-Marne pour avoir tué son épouse, Serge D… est présenté comme un homme passif et soumis.

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Deux décrets d’application sont récemment venus préciser les modalités d’application des dispositions de la loi du 23 mars 2019 de programmation 2018-2022 et de réforme pour la justice. Les publics concernés par la publication de ces deux textes sont sensiblement les mêmes, à savoir les personnes poursuivies ou condamnées, les greffiers et magistrats, les agents des services pénitentiaires d’insertion et de probation et enfin les chefs d’établissements pénitentiaires.

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I reviewed the High Court’s decision (refusal of anti-suit) in Gray v Hurley here. The Court of Appeal [2019] EWCA Civ 2222 has now referred to Luxembourg.

As I noted at the time, the High Court discussed the matrimonial exception of Brussels Ia, as well as the exclusive jurisdictional rule of Article 24(1), and (briefly) Article 25’s choice of court. The appeal however only concerns the application of Article 4’s domicile rule. Was Mr Hurley domiciled in England on 26 March 2019, when the court was seized?  Article 62(1) Brussels Ia refers to the internal law. Lavender J decided that Mr Hurley was not domiciled in England, however that Lindner should be read as extending to the defendant’s last known domicile in a case where the Court: (1) is unable to identify the defendant’s place of domicile; and (2) has no firm evidence to support the conclusion that the defendant is in fact domiciled outside the European Union. I suggested at the time that this is a very relevant and interesting reading of Lindner, extending the reach of Brussels Ia as had been kickstarted by Owusu, with due deference to potential New Zealand jurisdiction (New Zealand domicile not having been established).

Note also that Mr Hurley had initially also relied on A34 BI1 however later abandoned this line. Article 34 is however cross-referenced in the discussion on Article 4’s domicile rule.

The Court of Appeal has concluded that the meaning of Article 4(1) and its applicability in this case is not acte clair and has referred to Luxembourg. The focus of the discussion was not whether or not Ms Gray was domiciled in England (see however my doubts as to the extension of Linder in the case at issue). Rather, the focus is on anti-suit and Article 4: Ms Gray submits that Article 4(1) provides her with a right not to be sued outside England, where she is domiciled, and that the court is obliged to give effect to this right by the grant of an anti-suit injunction to restrain proceedings in a third State.

As the Court of Appeal notes, the consequences of her arguments are that an EU-domiciled tortfeasor who was being sued only in a third State could require the court of his domicile to grant an anti-suit injunction – in contrast to the ‘flexible mechanism’ under Articles 33 and 34 in cases where the same or related proceedings exist in both jurisdictions. By the same token, if there are proceedings in a Member State, the defendant could seek an anti-suit injunction to prevent the claimant from taking or continuing unrelated proceedings in a third State. And, as appears from the present case, it is said that it makes no difference that the claimant’s case is not one that the courts of the Member State could themselves entertain, meaning that the ‘right’ said to be conferred on the claimant by Article 4(1) would have no content.

Yet again therefore interesting issues on the use of anti-suit to support EU (rather than: a particular Member State) jurisdiction. The Court of Appeal is minded not to side with Ms Gray, for comity reasons (anti-suit being a serious meddle in other States’ jurisdictional assessment) and because the use of anti-suit here would not serve the Regulation’s objectives of sound and harmonious administration of justice. At 52 it suggests the MS Gray line of reasoning would have profound consequence which would be expected to be explicit in the Regulation and not to be arrived at sub silentio – but refers to the CJEU for certainty.

Geert.

(Handbook of) EU Private international law, 2nd ed. 2016, Chapter 2 practically in its entirety.

En l’absence d’autres éléments portés à leur connaissance, les juges qui prononcent une peine d’emprisonnement sans sursis en matière correctionnelle peuvent, sans méconnaître les dispositions de l’article 132-19 du code pénal, fonder leur appréciation de la personnalité du prévenu sur le seul casier judiciaire.

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The EAPIL founding conference, scheduled to take place in Aarhus on 14, 15 and 16 May 2020, is fast approaching.

We are happy to announce that all law students without a final master degree in law may now register to the conference at a reduced fee of 30 Euros.

The reduced fee gives access to all lunch breaks and the reception.

Those wishing to also take part in the conference dinner are asked to pay for the full dinner fee (50 Euros).

Further information can be found here.

Which rules are more important to determine the protection of weaker parties in financial disputes – the Brussels I bis Regulation on jurisdiction and the recognition and enforcement of judgments, or the Markets in Financial Instruments Directive (MiFID)?

That is, in a nutshell, the question faced by the CJEU in Petruchová v. FIBO Group Holdings, a case decided on 3 October 2019.

Mrs Petruchová, a Czech resident, had entered into a framework agreement with a Cypriot brokerage company, allowing her to conclude highly speculative transactions in the market for foreign exchange (FOREX). The agreement contained a clause giving jurisdiction for any dispute under the contract to Cypriot courts. When a trade went awry, Mrs Petruchová nevertheless sued the brokerage company in the Czech Republic.

The solution seemed straightforward. It seemed obvious that Mrs Petruchová was a consumer in the broad sense, as defined by Article 17(1) of Brussels I bis, given that she had speculated outside her trade and profession for her private account. Under Article 25(4) of Brussels I bis, forum selection agreements with consumers are valid only where they meet the conditions set out in Article 19, which was not the case.

However, there was a nagging problem. MiFID provides for a much more nuanced protection of weaker parties to financial transactions than Brussels I bis. Not only does it distinguish between three different categories of investors (retail investors, professional investors, and eligible counterparties), it also uses different criteria to determine the investor’s sophistication. Among them are the client’s wealth, the number of trades she has previously executed, and any experience she might have in the financial industry. In addition, the investor can to some extent choose to upgrade or downgrade her categorisation.

In Petruchová v. FIBO Group Holdings, the CJEU gave priority to Brussels I bis. It stressed that the knowledge and information that a person possesses in a certain field do not matter for the purposes of determining whether she requires consumer protection (para 55-56). Nor do the value of her transactions, the risks associated with them, or her active conduct (para 59).

The Justices admitted the need for consistency of EU law, which could involve taking into account other legislative provisions when defining the “consumer” (para 61). Yet, the parallel concept of the retail investor in MiFID did not appeal to them. Their ‘killer argument’ was that the definition under MiFID also covers legal persons – a major ‘no-no’ for consumer protection (para 71).

The CJEU also did not follow a parallel to Article 6(4) of the Rome I Regulation on the law applicable to contractual obligations, which the Czech court of first instance had invoked to exclude disputes over financial instruments from the scope of consumer protection. To overcome this point, the CJEU distinguishes between the purposes of Rome I and Brussels I bis (para 64).

Instead of this complex and debatable argument, the Court of Justice could have relied on a proper reading of Article 6(4)(d) of Rome I, which excludes rights and obligations which constitute a financial instrument only “in so far as these activities do not constitute provision of a financial service”. FIBO Group Holdings had clearly rendered a financial service to Mrs Petruchová.

The upshot of the case is that the concept of the consumer in the Brussels Ia Regulation remains uniform and does not differ in financial disputes. This result has the benefit of clarity.

But one may reasonably ask why an investor defined as a ‘professional’ for the purposes of MiFID is permitted to ignore jurisdiction agreements she has entered into. Are not the latter much easier to understand than the obligations under complex financial instruments? Perhaps one could argue that the investor is only a “part professional”: professional in financial matters but an amateur in legal matters, such as forum selection clauses.

Regretfully, the CJEU has not entered into this discussion.

Le 29 janvier dernier, le parquet national financier et la société Airbus ont signé la sixième convention judiciaire d’intérêt public pour des faits de corruption d’agent public étranger, abus de biens sociaux, abus de confiance, escroqueries en bande organisée, blanchiment de ces délits, faux et usage de faux.

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Thank you Filbert Lam for yet again flagging an important case. In [2020] EWCA Civ 6 Kabab-Ji SAL v Kout Food Group Flaux LJ extensively discussed the application of Sulamerica as to the governing law of an arbitration agreement which provides for arbitration in Paris but which is contained in a main agreement which is expressly governed by English law; and as to whether the respondent became a party to the main agreement and/or the arbitration agreement notwithstanding the presence of No Oral Modification provisions in the main contract.

Parties’ choice of English law for the underlying contract was found to also be an express choice of the law governing the arbitration agreement. This meant there was no need to consider the implications (particularly viz a possible implied choice of law) of a choice of Paris as seat or other aspects of the Sulamérica test. The award applying French law was set aside.

Jonathan Lim suggests here that the judgment is a departure from the understanding of separability in previous CA decisions, although the ensuing discussion on his feed also suggests that the factual interpretation of the clauses might suggest the exact opposite. I tend to agree with Jonathan: the generic nature of the clauses and the lack of (reported at least) other strong indications seem to suggest the finding of express choice of law was optimistic.

Geert.

On 10 February 2020, the European Commission announced its intention to open a process of consultation to get feedback from citizen and stakeholders on whether the EU should join the Hague Convention of 2 July 2019 on the recognition and enforcement of foreign judgments in civil or commercial matters (the Hague Judgments Convention). 

In the words of the Commission, the EU has put in place a highly developed internal acquis for the cross-boder recognition and enforcement of judgments, as a necessary complement to its single market. By way of contrast, at the international level the recognition and enforcement of judgments in civil and commercial matters has, until recently, not been successfully regulated, even if some bilateral agreements between States exist.

Currently, civil or commercial judgments rendered by courts in the European Union can be recognised and enforced in a third country only in a limited number of situations, namely: (i) based on the 2005 Choice of Court Convention, which has a limited scope; (ii) in Iceland, Norway and Switzerland based on the Lugano Convention; (iii) based on a limited number of bilateral treaties between individual Member States and third States; (iv) based on multilateral treaties related to particular matters; or (v) on the basis of the national law of third States, sometimes subject to reciprocity. 

The Commission believes that the adoption in July 2019 of the Hague Judgments Convention may change the situation just described. Moreover, it claims that a future proposal for EU accession to the Judgments Convention would be in line with the objectives set out in the Political Guidelines for the European Commission (2019-2024), in particular related to “An economy that works for people”.

The policy objectives of the EU accession to the Judgments Convention would be: to enhance access to justice for EU businesses and citizens through a system that facilitates the recognition and enforcement of judgments everywhere in the world where the debtor happens to have assets; to increase legal certainty for those involved in international trade and investment; to reduce costs for businesses and citizens involved in international dealings or in international dispute resolution; to allow the recognition and enforcement of third-country judgments in the EU only where fundamental principles of EU law are respected, such as for instance the right to a fair trial, and which do not affect the EU acquis related to the internal recognition and enforcement of judgments.

As for the policy options, the Commission puts forward the following:

Option 0: Baseline scenario: no policy change. The Union will thus not accede to the Judgments Convention and the current status quo will continue. However, given the EU’s active involvement in these negotiations and the fact that its results reflect EU’s policy interests, this scenario is taken into account mainly as a benchmark in order to assess the other options.

Option 1a: The Union will accede to the Judgments Convention without making any declaration.

Option 1b: The Union will accede to the Judgments Convention, excluding certain matters reflecting the EU’s policy objective of protecting weaker parties, such as consumers, employees or, in matters relating to insurance, the policyholder, the insured or the beneficiary, or/and certain matters falling under the exclusive jurisdiction of EU courts, for instance with regard to disputes relating to tenancies or commercial lease of immovable property.

Option 1c: The Union will accede to the Judgments Convention excluding State entities from the application of the Convention

Option 1d: A combination of options 1b and 1c

The Commission’s preliminary assessment of acceding to the Convention points to a positive outcome in economic terms, coupled with an improvement of growth and investment, thus of employment (the Commission acknowledges nontheless that as trade and investment of companies from outside the EU might also increase, some negative economic impacts in the short term cannot be excluded for EU competitors).

From the point of view of access to justice, signing the Convention would have postive implications as well. In terms of administrative burdens, the Commission is once again optimistic: although some Member States with a simple system for recognition and enforcement would face some negative impact if the new system based on the Judgments Convention is implemented, the Commission believes that such possible negative impacts would be offset by the important economic benefits.

The public consultation on the above-mentioned policy objectives and options, and on the likely impacts of signing the Convention, will be launched in March/April 2020 and run for a minimum period of 12 weeks. It will be available via the Commission’s central public consultations page; the questionnaires will be available in English, French and German but the replies can be made in any of the 24 official languages.

An in-depth Study on the Hague Judgements Convention Draft of November 2017, requested by the JURI Committee of the EU Parliament, to a large extent, still valid under the final version, can be downloaded here; it includes a chapter devoted to the relationship with the EU rules, and policy recommendations on the position of the EU vis-à-vis the Convention. A detailed explanation of the Convention as adopted is provided by A. Bonomi (Professor at the University of Laussane) and C. Mariottini (Senior Research Fellow, Max Planck Institute Luxembourg) at the Yearbook of Private International Law, vol. 20 (2018/2019), pp. 537-567. 

Deux jours de suite, des dizaines d’avocats se sont employés à défendre avec ferveur et opinâtretés des dizaines de prévenus comparant devant les deux salles de la 23e chambre correctionnelle, celle des comparutions immédiate. Une « défense massive » qui se pérennise et soulève l’enthousiasme chez les avocats, qui demandent le retrait de la réforme de leur régime de retraite.

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Le dernier film de Stéphane Demoustier est la chronique sobre et haletante d’un procès d’assises, au cours duquel une jeune fille est accusée d’avoir assassiné sa meilleure amie. Le rituel de l’audience, le déroulement des débats, ainsi que les incidences de l’instance, sont analysés avec une méticulosité remarquable, servie par un beau jeu d’acteurs.

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The 12th edition of the leading French treatise on private international law of Prof. Pierre Mayer (Panthéon-Sorbonne University) is out. The book is now primarily updated  by Vincent Heuzé (Panthéon-Sorbonne University) and Benjamin Remy (Cergy Pontoise University).

The book covers all traditional dimensions of the conflict of laws and, in keeping with the French tradition, the law of citizenship and immigration.

More details can be found here.

Non lieu à renvoi

Non lieu à renvoi

Non lieu à renvoi

Maria Caterina Baruffi and Matteo Ortino (both University of Verona) have edited Trending topics in international and EU law: legal and economic perspectives.

The book collects the proceedings of the #TILT Young Academic Colloquium, held in Verona on 23-24 May 2019. The event, targeted to Ph.D. students and early career scholars, was organised by the Law Department of the University of Verona in collaboration with the Ph.D. School of Legal and Economic Studies and the European Documentation Centre.

The volume is divided into four parts, respectively devoted to public international law, including papers on human rights, international criminal law and investment law; private international law ; EU law, both in its general aspects and its policies; and law and economics.

The table of contents can be found here. See here for further information.

I have for the moment little to go on in a new claim, launched in the English courts, in the Corporate Social Responsibility /mass torts category. The claim was apparently filed against Barrick Tz Limited, formerly Acacia Mining, domiciled in the UK, alleging human rights abuses by security forces at the company’s North Mara mine.

Of jurisdictional note undoubtedly will be the application of Articles 33-34 Brussels Ia: forum non conveniens – light, and a likely application for summary judgment by defendant. There is as far as I know no mother holding issue involved, unlike in Vedanta or Bento Rodriguez /Samarco.

Geert.

(Handbook of) European Private International Law, 2nd ed. 2016, Chapter 8, Heading 8.3.

Claim was issued against Barrick Tz Limited, formerly known as Acacia Mining.

For the kind of jurisdictional issues involved, use search string 'CSR' on the https://t.co/nqA3VE1lht blog. #bizhumanrights https://t.co/wIr8X6D0Le

— Geert Van Calster (@GAVClaw) February 10, 2020

La procureure de la République a requis quatorze ans d’emprisonnement contre Gilbert Chikli, et dix ans contre Anthony Lasarevitch, organisateurs selon elle de l’escroquerie au « Faux le Drian ». Contre les autres prévenus, elle a requis entre deux et quatre ans d’emprisonnement. En dehors de Sylvain R., tous les prévenus ont demandé leur relaxe. Délibéré le 11 mars.

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